The Economist

March 1, 1975
THE WORLD; ABORTION LAW p. 52

Europe is moving both ways

Women's libbers joined by trade unionists, Social Democrats and social reformers took to the streets throughout West Germany this week in protest against the rejection of Bonn's abortion law by the federal constitutional court on Tuesday. For eight months the Germans had been in the liberal vanguard on aborton -- in the statute books, at least -- with a law permitting abortion on demand in the first 12 weeks of pregnancy. But this law was never actually implemented; the opposition parties referred it to the constitutional court, which suspended it immediately after it was passed by the Bundestag last June. Now, as a result of Tuesday's judgment, West Germany moves firmly to the conservative rear in western Europe -- behind the five countries which allow abortion on demand in the early weeks of pregnancy (Austria, Denmark, France, Holland and Sweden), behind the three other countries which allow abortion under flexible conditions (Britain, Norway and Finland) and possibly even behind church-ridden old Italy, whose own constitutional court issued a ruling last week amending a blanket ban on abortion dating back to the fascist era.

The Karlsruhe court based its judgment on the argument that abortion is "an action designed to destroy life". Six of the eight judges, all linked with the opposition Christian Democratic party, concluded that the inviolability of the right to life in the German constitution must also apply to the unborn child. This means that having or performing an abortion will continue to be a punishable crime in Germany -- an abortionist is liable to up to 10 years in jail though few are actually convicted -- except in certain extreme circumstances: where the health or life of the mother is endangered; where pregnancy was the result of rape or incest; and where the foetus is thought to be damaged. Social grounds for abortion are to be considered under "very strict limitations".

Italy pulls ahead
Italy's constitutional court addressed itself to the very same question of the right to life only a week before the German decision. But unlike the German court it specifically recognised the possibility of conflict between the constitutional rights of the foetus and those of the mother. Where such a conflict occurs, the Italian court ruled, the mother's right to health and sanity must prevail over that of the embryo, which is "not yet a person". Procuring an abortion is therefore no longer illegal in Italy when there is a serious, though not necessarily imminent, threat to "the physical or psychic health" of the mother. The court invited the legislature to devise a new law on abortion to prevent abuse of this loophole.

Last week's court ruling has already caused a vast amount of ink to flow in this country of jurists. The Vatican remains adamantly opposed to abortion in any and all circumstances, and last Sunday the Pope publicly lamented that opposition to this sinful act was not as firm as it should be. What he was probably deploring is the fact that Italy's Christian Democrats, remembering their humiliating defeat on the divorce bill last spring, are hedging their bets on abortion. The party is drafting a bill to admit "therapeutic abortion" in exceptional circumstances, which are more or less identical with those cited by the court.

In both Germany and Italy, abortion has been transmogrified in the past few years from a fringe social concern to a hot political issue. The German court's decision this week was, in effect, a defeat for the government and a victory for the Christian Democratic opposition, which has made a habit of challenging all the major bills put forward by the coalition government since the 1972 election. When the Christian Democratic majority in the upper house fails to block a bill, as it did in the abortion case, it turns to the court. Since there is no appeal against decisions of the constitutional court and no chance that a two-thirds majority can be mustered in parliament to overturn it, the government, foiled again, will have to draft a new abortion bill which can somehow pass court scrutiny. This is most likely to resemble last year's opposition draft, which permitted abortion on medical grounds only.

Italy's parliament has had an abortion bill before it for two years, sponsored by the same deputy, Signor Loris Fortuna, who launched the equally controversial divorce act. But because abortion, like divorce, was an awkward question, which divided the Christian Democrats from the "lay" parties and thus created difficulties for the centre-left coalition, it was left to languish without even coming before the appropriate committee. Now, however, the political parties have been stung into action by the extremely effective agitation of the abortion lobby.

The enactment of an abortion law in France in December legalising abortion on demand in the first 10 weeks of pregnancy gave new heart to the pro-abortionists in Italy. The shock troops of this campaign are the women's liberation movement and the Radical party, a civil rights pressure group without any seats in parliament. In January the two groups jointly sponsored a three-day conference on abortion in Rome, the climax of which was the arrest of the Radicals' secretary, Signor Spadaccia, and the head of an abortion information centre, Signora Adele Faccio, on charges of promoting an abortion clinic. Signor Spadaccia was eventually released on bail. But when the magistrates refused bail to Signora Faccio, he and another Radical leader went on hunger strike.

All Italy's parties, with the single exception of the neo-fascist Italian Social Movement, now have experts drafting abortion bills. (The Communists, still trying to pursue their entente with the church, take a less liberal approach than many of the others.) Parliament is pledged to examine these drafts in joint sittings of the justice and health committees before the end of March. Meanwhile the pro-abortionists, with the help of the newspaper L'Espresso, are collecting signatures for a referendum to abrogate the present law. If last May's divorce referendum is anything to go by -- and most Italians feel that it is -- a referendum on abortion would sweep away the old fascist law at a stroke. Recent opinion polls indicate that 72 per cent of Italian women would vote in favour of legal abortion. The latest comparable figure for both men and women in Germany is 59 per cent.

Even if a new law were passed and implemented within a year, current estimates are that between 1m and 3m Italians would have gone to backstreet butcher shops before then and some 2,000 of them would have died. These are far and away the highest abortion and casualty rates in western Europe -- Germany and France both have between 300,000 and 400,000 illegal abortions a year and Britain has 175,000 legal ones, including those done on Germans, French and Italians -- though even the Italian rate has nothing on the Russian one of 13m legal abortions a year.

Under the pressure of these statistics, Signora Faccio's Centre for Information on Sterilisation and Abortion is planning to open six abortion clinics in addition to the one which was operating in Florence before Signora Faccio and one of her doctors were arrested. It is also organising an information and referral service on the model of one run by feminists in France. These French women have decided to keep their service going because the fine print of the new abortion-on-demand law which went into effect on January 18th will make abortions easier than before -- but still difficult.

Both the Italian and the French referral services will be sending some of their customers to Britain. More than 1,700 Italians came to Britain last year, which was far fewer than the 36,000 Frenchwomen and 6,000 Germans, probably only because fewer Italians can afford both the trip and the extortionate fees charged by taxi touts and profiteering doctors. The British parliament is now considering a bill, sponsored by Mr James White, which would establish a residence requirement for abortions in Britain with the stated object of eliminating the more unsavoury aspects of this abortion traffic. Opponents of the new bill have been arguing that the number of foreigners coming to Britain for abortions would in any case be decreasing sharply because of the liberalisation of laws in other European countries. There will certainly be fewer Frenchwomen this year, but this week's German court action will slow down the decline for the time being.

The price should be right
The French, who have hardly been a model of liberality in the abortion field so far, set an example last week which should prove helpful to those British reformers who want to curb abortion abuses without cutting back the scope of an abortion act otherwise judged successful. What the French government did was simply to set a single fixed price for abortions in both public and private hospitals. At 600 francs or ё60 this is about the cost of non-commercial private abortions in Britain although it is less than the cost of abortions in profit-making private clinics. Britain's minister of state for health, Dr David Owen, told parliament last month that the government was considering a similar fixed-price plan.

Another recent foreign decision on abortion is also likely to be brought into the current British debate on amending the pioneering 1967 abortion act. This is the conviction last month for manslaughter of a Boston physician, Dr Kenneth Edelin, because he performed an abortion by hysterotomy on a woman who was 20-28 weeks pregnant. The argument of the prosecution in this case was that the foetus was sufficiently developed to survive outside the uterus; therefore its elimination was tantamount to homicide.

Unlike other European abortion laws, the British law does not set different criteria for abortions in the first and second trimesters of pregnancy. Thus it is more stringent than the five abortion-on-demand countries in the first 10-12 weeks and less restrictive in the subsequent weeks up to the legal limit of 28 weeks. The Lane commission, which studied the workings of the British act last year, recommended a reduction of this limit to 24 weeks. The White bill seeks to bring this limit down to 20 weeks. Opponents of this move have pointed out that only 975 abortions -- well under 1 per cent of the 173,000 abortions performed in Britain in 1973 -- were done later than 20 weeks and that these tended to be concentrated among the poorest, youngest and least capable reluctant mothers.

The most radical change which the White bill proposes for Britain's abortion act is a small semantic alteration in the so-called social clause, which some leading obstetricians predict may have the effect of reducing the total number of abortions performed on British residents from 119,000 to 20,000 a year. It would achieve this by eliminating a phrase which defines abortion as acceptable so long as the risk of continuing the pregnancy is greater than that of the abortion. Since childbirth is statistically more dangerous than abortion in the early weeks of pregnancy, this phrase provides an ultimate legal defence on which doctors can rely. Without such a phrase, doctors would be operating in a legal grey area and with precedents like the Edelin case before them, many might chose to avoid legal complications by refusing to perform abortions at all.

Ensuring that abortion laws are implemented fully and fairly is the next problem stage once the traditional legal prohibitions have been cleared away. Britain is tackling this question now as is the United States after the Edelin decision. Austria may be doing so soon as a result of evidence that its new law which came into force on January 1st is being blocked by doctors and clinics. The French are also likely to be coming up with similar findings. Forcing doctors to perform abortions is plainly not the way to make an abortion law work. Protecting them from sanctions when they do so in good faith might be.